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SCOTUS Campaign Finance Decision: Enough Stupidity, How It Can Help Queers

Like most Americans, I was shocked when I heard that the Supreme Court decided to obliterate the regulations that kept corporations from directly spending money to influence elections. At first, this decision looked like a flaming disaster for liberty from the perspective of the average person. I was ready to call for assassinations and do all of my usual rantings, but I stopped to think about this for a little while and what it meant. This case is very far-reaching, on the magnitude of Roe v. Wade. It’s hard to imagine a recent case with implications that are more broad or far-reaching. If you’re wondering where various groups stand in all this, The Washington Post did an admirable job of compiling the opinions of the various factions in a succinct format for all to digest in a single page. This is the last time I’ll praise the Post herein, though – as you’ll soon see.

The first reality check we need to get through to understand this issue is to realize that corporations have always influenced elections in this country. There was never a moment in time when they didn’t and I’d be wiling to stake my life on the fact that there never will be. This is not a new revelation, one would have to have been living under a rock to have missed this memo. But judging by the uneducated opinions I have been hearing on this topic, its pretty darn clear that more than just a couple of folks did – in fact – miss the memo.

Under the old law, a corporation had to form a PAC in order to run ads on an issue. The PAC allowed the corporation to basically hide its involvement in a given message. Either that, or the managers or directors of a corporation had to use their own salary to put a message out there, after taxes were taken out. The former option is time-consuming, chock full of red tape and expensive, which ensures that only the largest corporations (which are usually the most conservative) undertake the effort. The latter requires directors to sacrifice after-tax pay to do engage in activism, which for many smaller managers and directors at smaller corporations is a deal breaker. Both allow the corporation doing the influencing to hide their involvement to all but the most knowledgeable researches who know their way around FEC campaign finance databases.

Even after the decision, corporations still cannot give money directly to campaigns for specific candidates. However, they can now use their money to buy airtime and target those unfriendly to their causes and they can do it easily, without having to invest in the infrastructure and deal with the red tape of setting up a Political Action Committee (PAC). They still have to mention which corporation is behind the message, just like they had to identify the PAC sponsoring a media blitz. Under the new rules, it will be easier to see who is behind the message and associate them with the source of the money.For instance, instead of having ads by some generic-sounding industry lobby group named something like “The Plastics Council” running ads which could be coming from any number of plastics manufactures, we might now see that Dow Chemical sponsored an ad.

While its likely that the use of PACs will not fall out of favor anytime for this very reason – they allow companies with the resources to set them up to divorce their name and brands from a message which they hold but may offend certain customer segments – there is another effect of this decision that’s worth considering – and celebrating. Most small companies – and yes, a lot of them are incorporated – don’t have the time, money or resources to start a PAC to fight for interests near and dear to them or their leadership. Until now, they were locked out of the process. Completely. That’s obviously changed with this decision, so what we may see is a surge of involvement by small businesses on a level never seen.

As for how this can help us queers, we outright control lots of corporations – most of them the ones described above who until this decision have been locked out of the process. Many of us own stock in various corporations even if we don’t own controlling stakes, and that gives us a chance to make our voices heard. Most people are completely ignorant of how corporations came to exist, ignorant of how they work, ignorant of the all-important rule of the shareholder, ignorant of the value of voting with dollars and ignorant of how corporations stand with the law. Not surprisingly, they therefore misconstrue this as the handing over of Democracy to the corporations and fail to recognize that this is a new tool for us activists to add to our arsenals.

Often times, the queer community seems to take Democratic party positions, even when doing so is not in their own best interest. Barak Obama’s recent attacks on the Supreme Court over this decision are downright foolish. For someone who is supposedly one of the smartest people in the country, he sure is failing to miss several key advantages of the decision. Of course, in the typical hypocritical fashion popularized in US politics, Obama and the Democrats have chosen to bitch, moan and groan – while at the same time plotting as to how they will make use of this latest so-called “loophole” to eviscerate and destroy their opponents. Gee, what a surprise. American politics aren’t called hypocritical for no reason.

But while the Democrats are acting like idiots, this time they have friends on the conservative side, too. The Washington Post, well-known for its apologetically conservative commentary, ran a piece blasting the Court that contained this little nugget of stupidity: “It was the height of activism to usurp the judgments of Congress and state legislatures about how best to prevent corruption of the political process.” This brings me to one of my favorite pieces of caselaw of all time. I am not sure if it is still “good” caselaw (as in it has not been overturned since being written way back in 1886) or not, I don’t honestly care. The wisdom expressed in it is as irrefutable as it is easy to understand.

“An unconstitutional act is not a law; it confers no rights; it imposes no duties; it affords no protection; it creates no office; it is in legal contemplation as inoperative as though it had never been passed.” — Norton v. Shelby County, 118 U.S. 425 (1886)

The Post piece also decries the fact that the Court went further than the Plaintiffs asked them to in striking down laws – laws that Congress passed. So what? Nearly all petitions for relief include a phrase similar to “… and for all other relief as the Court may find just, proper or equitable.” as part of the standard boilerplate. Even if this particular petition did not, the Court always has the right to grant relief on its own motion. Obviously, a majority of the Court felt it was just and proper to do what it did. Its the job of SCOTUS to strike down laws that are unconstitutional, and a court that is doing its job is by definition not engaging in judicial activism, its just being judicious. Its still their job even when (and I’d argue especially when) Congress passes laws. Just because you disagree with a decision does not mean that judicial activism has occurred or that legislation is being passed from the bench. This entire concept is often lost on the folks who cling to the lower runs of the intelligence ladder in our society.

But love it or hate it, the ruling is already having an effect in Oklahoma, as the Ethics Commission met to revise its rules to comply. “We don’t really have a choice. This is the decision of the Supreme Court,” Ethics Commissioner Karen Long astutely observed. While the Supreme Court’s ruling applied only to candidates for federal office, the Constitution (and the Constitutional issues that SCOTUS dealt with and decided) applies to all elections for all offices and all speech. Therefore, its likely Oklahoma and other states that have laws abridging corporate speech are similarly unconstitutional. I do have to say its breath of fresh air to see Oklahoma officials complying with the decision rather than taking the approach Steve Russel (HD – R) did with Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act (an approach which Democrats loudly decried – as did I). Of course, not everyone is happy. All of the usual Democrat groups in the state are hymning and hawing at the notion of changing the rules so soon, most likely hoping that Congress can cook up some sort of bill to effectively opt out of the new way of doing things. Its not hard to see the irony in this latest approach if you have even a small amount of intelligence.

You know who I blame for all of this symphony of stupidity? Teachers. That’s right, red apple toting, teachers union card carrying, my union rep will sue the school district if you try to make me accountable public school teachers. After all, they are the ones graduating kids these days who clearly don’t even understand the basic role of The Supreme Court in the process of running our government. Its really scary to see that one of them has gotten himself elected as our president, right after another idiot who couldn’t read or talk who pulled off the same feat. If you want to change the world, invest in education.